Citation Nr: 1122822
Decision Date: 06/14/11 Archive Date: 06/28/11
DOCKET NO. 06-03 171 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to service connection for diabetes mellitus (DM), including as due to herbicide exposure.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Michael Wilson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1956 to February 1958.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the benefit sought on appeal. In December 2009, the Board remanded the case to the RO, via the Appeals Management Center (AMC).
FINDINGS OF FACT
1. The evidence of record does not show that the Veteran served on a United States Ship that was involved in herbicide exposure.
2. The evidence of record does not support a finding that the Veteran's DM is etiologically related to active service.
CONCLUSION OF LAW
The criteria for service connection for DM have not been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (West 2002 & Supp. 2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b) (2010). This notice must be provided prior to an initial unfavorable decision on the claim by the Agency of Original Jurisdiction. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, that will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.
The Veteran has received essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Prinicipi, 353 F.3d 1369 (Fed. Cir. 2004). An RO letter dated in February 2005 informed the Veteran of all three elements required by 38 C.F.R. § 3.159(b) as stated above. The RO sent an additional letter dated in December 2005 requesting information to assist in determining whether the Veteran was exposed to herbicides. In light of the denial of the Veteran's claim for service connection, no disability rating or effective date can be assigned, so there can be no possibility of prejudice to the Veteran under the holding in Dingess, supra.
As to the duty to assist, the RO has obtained the Veteran's service personnel records (SPRs), his service treatment records (STRs), and his VA treatment records. The Veteran has not indicated that there are other outstanding treatment records he wished VA to obtain.
As noted above, in December 2009 the Board remanded the case to the RO, via the AMC, directing the AMC to obtain recent VA treatment records for the Veteran, to determine whether the Veteran was exposed to herbicides on board the U.S.S. Boxer, and to acquire the Veteran's Official Military Personnel File. The AMC acquired the requested records and in an April 2010 supplemental statement of the case (SSOC), the AMC determined that a review of an official listing of sites where herbicides were used or tested did show usage in 1956 and 1957, but that no United States Ship (including the Boxer where the Veteran claimed to have served and the U.S.S. Princeton where the Veteran was shown to have served) was shown to have been involved. The AMC did not take any further steps to determine whether the Veteran was exposed to herbicides as alleged. However, where the Veteran's claim is based on service aboard the Boxer, and the AMC, after obtaining the Veteran's complete personnel file, was unable to find credible evidence supporting the Veteran's contention that he served aboard the Boxer, the Board finds that the AMC substantially complied with the December 2009 remand directives and that no further action is necessary in this regard. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).
The Board acknowledges that, to date, VA has neither afforded the Veteran an examination, nor solicited a medical opinion regarding the Veteran's diabetes. However, no VA examination is necessary to satisfy the duty to assist in this case. Under 38 U.S.C.A. § 5103A(d)(2) (West 2002), VA must obtain a medical examination or opinion when such is necessary to make a decision on a claim. Specifically, a VA examination is required where the record contains competent evidence of a current disability, and indicates that the disability or symptoms may be associated with military service, but does not contain sufficient evidence for the Secretary to make a decision. Id. As discussed below, there is no competent and credible evidence of record suggesting that the Veteran's diabetes is associated with his military service. The Veteran's statements suggesting that he was exposed to herbicides are not credible and evidence in the Veteran's claims file does not provide any basis for substantiating the Veteran's claim. In such circumstances, there is no duty to obtain a medical examination or opinion. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (where Board makes finding that lay evidence regarding in-service event or injury is not credible, VA examination is not required); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006).
The duty to assist has, therefore, been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal.
II. Service Connection
The Veteran contends that he incurred diabetes as a result of exposure to herbicides while serving in the United States Navy. Specifically, he alleges that he was assigned to serve on the U.S.S. Boxer and that during a troop movement expedition outside of Japan, sometime between February 1956 and September 1956, military aircraft dropped herbicides on the area to treat for leaches and mosquitoes. He contends that he became sick for several days due to the exposure.
Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). Service connection requires competent evidence showing: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2010).
Certain chronic diseases, including DM, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2010). However, as discussed below, because there is no evidence showing that the Veteran's diabetes mellitus was manifest to a degree of 10 percent or more during the first year following separation from service in 1958, service connection on a presumptive basis is not warranted in this case.
Service connection may also be established on a legal presumption based on herbicide exposure where a Veteran served on active duty in the Republic of Vietnam during the Vietnam era and has a certain listed disability, including DM type II. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2010); 38 C.F.R. § 3.307(a)(6)(iii) (2010). Such a Veteran is presumed to have been exposed to herbicide agent (Agent Orange) during service unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See id.; see also McCartt v. West, 12 Vet. App. 164, 166 (1999). Significantly, however, because the Veteran did not serve on active duty in the Republic of Vietnam during the Vietnam era, he is not presumed to have been exposed to herbicide agent during service. As such, in order to qualify for service connection on the basis of exposure to herbicides outside of the Republic of Vietnam, such exposure must be verified before service connection for DM based on herbicide exposure may be established.
The M21-1MR manual provides guidelines for verifying exposure to herbicides outside of Vietnam and the demilitarized zone in Korea. Specifically, under M21-1MR, Part IV, Subpart ii, 2.C.10.n., once the Veteran has provided the approximate dates (i.e., within a 60 day period), location, and nature of the alleged exposure, the RO is to submit a request to Compensation and Pension (C&P) Services via email, furnishing the Veteran's detailed description of exposure and requesting a review of the Department of Defense's (DOD) inventory of herbicide operations to determine whether herbicides were used as alleged by the Veteran. If the C&P Services' review yields a negative result, then the RO is to submit a request for verification of exposure to herbicides to the U.S. Army and Joint Services Records Research Center (JSRRC) based on the Veteran's military unit, location, dates at the location, military occupation, and any other relevant facts as shown by the Veteran's service records. See M21-1MR, Part IV, Subpart ii, 2.C.10.n. In this regard, the Board acknowledges that the AMC has made some effort to verify the Veteran's exposure to herbicides during service. The record reflects that the AMC attempted to verify the Veteran's alleged service aboard the U.S.S. Boxer. However, in the April 2010 SSOC, the AMC noted that after a review of the evidence, including a complete copy of the Veteran's SPRs, no evidence could be found that the Veteran served on the Boxer. The Board similarly concludes that a thorough review of the Veteran's SPRs reveals that there is no evidence that the Veteran had service aboard the Boxer. To the contrary, all evidence of record, including documentation of transfers, leave, and disciplinary actions, shows that the Veteran was regularly reported as being assigned to serve on the U.S.S. Princeton during the complete period of his active service. Since the Veteran's claim was based on the factually erroneous allegation that he was exposed to herbicides while aboard the Boxer, the AMC could not take additional steps to verify his alleged exposure.
The Board observes that the Veteran's claim is replete with other unfounded factual allegations which, at a minimum, have complicated efforts to verify his claim, but more severely, have diminished his credibility. In addition to claiming unverified service aboard the Boxer, the Veteran has alleged that he was exposed to herbicides that were used for leaches and mosquitoes. By definition, however, herbicides are used to destroy foliage, not to eliminate unwanted insects or other similar pests. There are no service connection presumptions based on exposure to insecticides or other not herbicide agents. See 38 C.F.R. § 3.307 (2010). The Veteran has additionally alleged that the VA has been using the wrong military service number to search for his records. His contention is that his service number is XXX XX X8, rather than XXX XX X4. A review of the claims file, however, reveals that the Veteran's records, including his SPRs, show that his service number ends with X4. Further, it appears that no records have been found to exist with a service number ending with X8. The Veteran reported having the service number ending with X8 as early as in an October 1974 Application for Compensation and or Pension. However, as noted on the bottom of a subsequent Request for Information Form, the Veteran's service number was found to be incorrect and was verified as ending with X4 instead of X8. Moreover, while the Veteran has alleged that records were not obtained under the number ending with X8, there is no indication that the Veteran has contended that the records obtained under the number ending in X4 do not pertain to him. To the contrary, the Veteran submitted an April 1990 statement indicating that he had requested and received copies of his DD-214, and his DD-214 of record clearly contains the service number ending with X4.
Although the Board has taken into account the Veteran's belief that his DM was caused by herbicide exposure, the Board notes that as a lay person, the Veteran is not qualified to identify any chemical compound that he may have been exposed to during service without substantive evidence. Similarly he is not competent to establish a medical etiology merely by his own assertions; such matters require medical expertise. See 38 C.F.R. § 3.159(a)(1) (2008) (Competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions); Duenas v. Principi, 18 Vet. App. 512, 520 (2004); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Nor is the
Moreover, to the extent that the Veteran is claiming that he was exposed to herbicides while serving aboard the U.S.S. Boxer, the Boards finds that he is not credible. Nothing in the record serves to support his allegations surrounding his claimed herbicide exposure. In fact, his allegations as to time, place, and nature of exposure are heavily outweighed by his inaccurate factual claims, as well as by the evidence of record. Accordingly, the Board finds that the Veteran is not entitled to service connection on a presumptive basis as a result of exposure to herbicide agents.
In this regard, the Board notes that it is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Further, the Board notes that in the time following the December 2009 remand of this case, the Court reached a decision in Bardwell, 24 Vet. App. at 40 (2010), concluding that lay evidence that a Veteran was exposed to gases or chemicals may be rejected on the basis that such exposure is not documented in the Veteran's personnel records.
The Board has also considered whether the Veteran is entitled to service connection under general service connection principles as identified in Hickson, supra. In the instant case, the evidence of record does not show that the Veteran's DM had its onset during active service or is otherwise related to service. The Veteran's STRs are negative for treatment for DM. Further, VA treatment records reveal that the earliest diagnosis of record for the Veteran's DM was not until November 2003, more than 45 years following his separation from active service and no competent medical opinion has linked his condition to his military service.
Accordingly, the Board finds that there is no competent or credible evidence of record to show that the Veteran's DM had its onset during active service or is otherwise related to service. Because the Veteran is not professionally qualified to suggest a possible medical etiology, and since there is no competent evidence of record showing that the Veteran's DM had its onset during service, was manifest within one year of his separation from service, or is related to any in-service disease or injury, including herbicide exposure, service connection for this condition must be denied.
For the reasons and bases provided above, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for diabetes. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the
doubt rule as required by law and VA regulations. See 38 U.S.C.A. §5107 (West 2002). Accordingly, the Veteran's claim for service connection for DM is denied.
ORDER
Entitlement to service connection for diabetes mellitus, including as due to herbicide exposure, is denied.
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P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs